Effective Date: June 2, 2020
Welcome to Wake! We invite you to access our websites and use the Wake service, but please note that your invitation and access is subject to your agreement with these Terms of Service. This document describes in detail your rights and our rights relating to the provision of the Service (as defined below), so please review these Terms carefully.
What Are the Terms of Service?
What Is the Wake Service?
The Wake Software (as defined below), the Wake service, and other products, services and websites hosted or made available by Wake, including, for example our Website, Dream Journal, and Social Dream Sharing pages are collectively referred to in these Terms as the “Service”. In exchange for being enabled to use the Service, you agree to abide by these Terms.
If This Is a Contract, Who Are the Parties?
You, the Account Holder, are one party to this contract. (An Account Holder is the person or entity who has contracted with Wake as either an individual Free, Basic, or Premium user or as a Customer as defined in our Wake Business Agreement.)
If you reside in the United States or Canada, then the other party to this contract is Wake Limited Liability Company, headquartered in Arizona.
On some occasions, you may be purchasing products or service subscriptions from an authorized reseller. Please review our Commercial Terms for information about additional contract terms relating to such purchases.
Will These Terms of Service Ever Change?
These Terms may be amended as new features, technology, or legal requirements arise, so please check back from time to time. If we make a significant change, we’ll notify you and, where required, seek your consent.
If we do update these Terms, you are free to decide whether to accept the updated terms or to stop using our Service (see “How is My Account Closed” below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement expressly amending these Terms and bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
What Do I Have to do to Use the Wake Service?
First, you need to create an Wake account. You create an account by providing us with an email address and creating a password. (Some older accounts also required a username.) We refer to this as your “Basic Subscriber Information”. We encourage you to use a distinct and non-obvious password that is different from passwords you use for any other service. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content without authorization, you should immediately change your password and notify our Customer Support team.
Second, you will need to access your account through a web browser, mobile device or by installing our client software on your computers, tablets and phones. Obtaining those devices and paying for their connectivity and data plans is your responsibility. Wake also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Can I Share My Account with Someone Else?
Wake service accounts should not be shared. If you share your Account Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper Account Holder. We will not have any liability to you (or anyone you share your Account Information with) as a result of your or their actions under those circumstances. Since you may use a free Wake service account, and since we provide a number of mechanisms to allow you to share your account Content with others, we strongly urge you not to share your information with anyone, unless you are doing so as part of your estate planning purposes, as discussed below.
Once I Have an Account, What Are My Rights in the Wake Service?
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Wake Software provided to you by or on behalf of Wake, for the sole purpose of enabling you to use the Wake Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the Wake Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in Wake or the Service.
Wake’s Data Protection Laws Say My Data Is Mine – What Does That Mean?
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant Wake a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, Wake acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.
What Is the License I Have to Grant to Wake?
In order to enable Wake to operate the Service, we must obtain from you certain limited license rights to process your Content that is covered by intellectual property rights so that technical actions we take in operating the Service are not considered legal violations. For example, copyright laws could prevent us from processing, maintaining, storing, backing-up and distributing certain Content, unless you give us these rights. Accordingly, by using the Service and uploading Content, you are granting Wake a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) and reproduce such Content to enable Wake to operate the Service. You also agree that Wake has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as your Content is stored with us), and include a right for Wake to make such Content available to, and pass these rights along to, others with whom Wake has contractual relationships related to the provision of the Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if Wake determines such access is necessary to comply with its legal obligations.
If you elect to use any third party service or application that is integrated with Wake, you also agree that the licenses granted to Wake in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant Wake the right and license to enable third party access to and extraction of your Content. Wake does not assume any responsibility for, or liability on account of, the actions or omissions of such third party applications or service providers.
As we rely upon your rights to upload and distribute your Content, you represent and warrant to Wake that (1) you have the unfettered legal rights and authority to submit your Content to Wake, to make any other use, publication or other distribution of that Content in your use of the Service, and to grant the rights granted to Wake under these Terms; and (2) your Content complies with our User Guidelines and these Terms.
Finally, you understand and agree that Wake, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
What Other Assurances Do I Have to Grant to Wake?
When you use the Wake service to send messages to an email address, to a telephone number via SMS, or through a social media account (e.g., Facebook or LinkedIn) that has not been linked to an Wake account, Wake sends such messages on your behalf, and we are relying on your representation to us that you have a direct relationship with the recipient(s) and that you are respecting the legal rights of the recipient(s) not to receive certain kinds of messages (such as harassing messages, unsolicited commercial messages, and unwanted SMS messages). Whenever you send any kind of message to a third party you represent and warrant to Wake that you are acting within the law and that you have prior consent from the recipient to send them such a message.
Are There Rules about What I Can Do on the Wake Service?
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of the Service, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third-party application or services integrated with the Wake service. If we find that any shared Content in your account violates our Terms of Service (including by violating another person’s intellectual property or privacy rights), we reserve the right to un-share or take down such content.
I’m Guessing Wake Has Some Rights Relating to the Service?
We do. They’re described here:
While you own the Content you store within the Wake service (subject to third party rights), you acknowledge and agree that Wake (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software that is part of the Service and all Wake software deployed by you or a third party to enable capturing of Content originating outside the Service or any of the Wake software applications for compatible computing devices that enable access and use of the Service through such device (the “Wake Software”).
INTELLECTUAL PROPERTY RIGHTS.
In agreeing to these Terms, you also agree that the rights in the Service and Wake Software, including all intellectual property rights, such as trademarks, patents, designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Wake Software, unless you are expressly permitted to do so under an open source license, we give you express written permission or you are otherwise legally permitted to do so notwithstanding this prohibition.
RIGHT TO MODIFY THE SERVICE.
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service, including changes that may affect the previous mode of operation of the Service or Wake Software. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions, the ability to send or receive email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, if you use Wake Basic, you will not enjoy all of the benefits provided to subscribers of Wake Plus, Wake Premium or Wake Business.
You also acknowledge that a variety of Wake actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Wake has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for Wake or another paid version of the Service (each a “Paid Service”) and find that any such modifications or interruption of the Paid Service adversely affects you, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Paid Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Paid Service subscription for a period of time equal to the interruption and/or refund a portion of your Paid Service subscription fee equal to the remaining unused term of the Paid Service subscription, as we determine appropriate or as may be required by applicable law.
RIGHT TO ENGAGE THIRD PARTIES.
RIGHT TO USE THIRD-PARTY SOFTWARE.
Wake may from time to time include as part of the Service and Wake Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. We provide information about some of this third party software here and within the particular Wake Software. Wake expressly disclaims any warranty or other assurance to you regarding such third party software.
RIGHT TO UPDATE OUR SOFTWARE.
In connection with any modification of the Service, Wake may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. Wake will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), Wake may require you to install the update to continue accessing the Service. In all cases, you agree to permit Wake to deliver these updates to you (and you to receive them) as part of your use of the Service.
How Does Wake Respond to Copyright or Other Intellectual Property Violations?
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms (which we believe to comply with the United States Digital Millennium Copyright and other applicable laws). If you believe that your intellectual property rights have been violated, please notify our Compliance team according to the instructions provided by our IP Rights Compliance Program and we will investigate. Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and Wake does not accept any obligation to take any particular action to enforce or protect any party’s intellectual property rights on their behalf.
Can Kids Use Wake?
Consistent with applicable law, Wake does not knowingly collect personal information from minors without parental consent. If we learn that we have inadvertently obtained information in violation of applicable laws prohibiting collection of information from children without such consent, we will promptly delete it.
Where Does My Data Go?
How is My Account Closed?
You may deactivate your account with our Service at any time, for any reason (or no reason). However, if you want to deactivate your account you need to take certain specific steps, you will need to cancel your subscription pursuant to our Terms and may reach out to customer support at email@example.com.
Wake may act to temporarily limit your use of the Service, suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for Wake suspending or closing your account may include, without limitation: (i) breach or violation of these Terms (including the User Guidelines) or any Separate Agreement, (ii) an extended period of inactivity (determined in Wake’s sole discretion), (iii) your nonpayment of any fees or other sums due Wake or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (v) unexpected technical or security issues or problems or extensive Unsupported Use.
In most cases, in the event we elect to close your account, we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on the Service servers (unless we determine that we are legally prohibited from providing such notice or enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
What Happens to My Account when I Die?
Wake’s pledge to protect the privacy of your Content will continue, even after your death or incapacity. If you wish to enable someone to have access to your Content or other data in your account after you are no longer able to provide them access, you need to implement a process for providing your information to them. We will not provide your information, or your Content, to anyone, even next of kin, unless we determine that we are legally obligated to do so. We encourage you to include your Account Information, with instructions on how to access your Content, in your will or other estate plans, so that anyone you wish to have access to your account will have the means to do so.
If I Have a Great Idea to Share with Wake, What Are My Rights?
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to Wake through the “Contact Us,” User Forum or Support interfaces or through any other channel or mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) Wake is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) Wake shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) Wake may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of Wake without any obligation of Wake to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from Wake under any circumstances.
Does Wake Serve Ads?
Some advertising or other messaging content we provide will be based upon information provided by third parties, and we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
What Else Do I Need to Know?
THIRD-PARTY LINKS, CONTENT AND PROGRAMMING.
We may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
You agree to indemnify and hold Wake, its subsidiaries, affiliates, officers, agents, employees, advertisers, Service Providers and other partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will endeavor to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
To the maximum extent permitted by law, the Service Is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE AND THE PURCHASE AND USE OF ANY SERVICES ARE ALL AT YOUR SOLE RISK.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Wake EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Wake DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Wake OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Wake, ITS SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF Wake HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE OR TO USE PROMOTIONAL CODES OR Wake POINTS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE; (v) Wake’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR BASIC SUBSCRIBER INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
EXCLUSIONS AND LIMITATIONS.
NOTHING IN THESE TERMS OF SERVICE (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
If Wake Has to Send Me Notice of Something, How Will That Happen?
This is another reason why it’s important for you to make sure your Account Information is accurate, complete and up to date. We may provide you with notices by email (to the email address associated with your account), regular mail or postings on the website(s) related to the affected Service.
How Can I Send a Notice to Wake?
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Wake must be delivered by email to firstname.lastname@example.org. This email address may be updated as part of any update to these Terms of Service
Are There Countries Where I’m Not Allowed to Use Wake?
You may not use or otherwise export the Service or any Wake Software except as authorized by United States (“U.S.”) law and the laws of the jurisdiction in which the Service is hosted or where you use the Service. In particular, but without limitation, the Wake Software may not be (i) exported or re-exported into any countries that are subject to U.S. economic sanctions or (ii) provided to or used by anyone on the U.S. Department of the Treasury's lists of Foreign Sanctions Evaders or Specially Designated Nationals or the U.S. Department of Commerce Denied Persons, Unverified, or Entity lists. By using the Service, you represent and warrant that you are not located in any such country or on any such list, and shall not use the Service, or provide access to or use of the Service to anyone, in any such country. In addition, you are responsible for compliance with applicable export control, economic sanctions and related laws when you travel across international borders and access your Content.
What Law Applies to My Use of Wake?
If you are a resident of the United States or Canada, these Terms and the relationship between you and Wake (including any dispute) shall be governed in all respects by the laws of the State of Arizona, United States of America, as they apply to agreements entered into and to be performed entirely within Arizona between Arizona residents, without regard to its conflict of law provisions.
If you reside outside of the United States, these Terms and the relationship between you and Wake (including any dispute) shall be governed in all respects by the laws of Switzerland and shall be considered to have been made and accepted in Switzerland, without regard to conflict of law provisions.
If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
What Do I Do If I Think I Have a Claim Against Wake?
LET US KNOW ABOUT YOUR COMPLAINT.
We want to know if you have a problem so we encourage you to contact our Customer Support team if you have any concerns with respect to the operation of the Service or any Wake Software, as we want to ensure that you have an excellent experience.
If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and Wake agree that any and all disputes or claims that have arisen or may arise between us - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. (Note that if you were a Service user prior to December 4, 2012 and formally elected to opt out of the Arbitration Agreement pursuant to the procedures set out in our Terms of Service that were effective as of December 4, 2012, you are not subject to this Arbitration Agreement.)
Our arbitration proceedings would be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Arizona, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Wake users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, Wake will pay all filing, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Wake will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Wake for all fees associated with the arbitration paid by Wake on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
YOU AND Wake AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER Wake USERS.
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then this entire Arbitration Agreement shall be null and void. The remainder of these Terms and this Section (What Do I Do if I think I Have A Claim Against Wake?) will continue to apply.
CLAIMS ARE TIME-BARRED.
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
The provisions of this section, entitled “Claims Are Time-Barred” shall be deemed to constitute a separate written legally binding agreement by and between you and us.
SPECIAL NOTICE FOR CALIFORNIA USERS.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us via email at email@example.com
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and Wake and govern your use of the Service, except for, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Wake for the use of the Service as of the Effective Date indicated at the top of these Terms. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of Wake shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.
Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.
In the event of a conflict, the English language version shall govern.